Volume 2004, Issue 1,
January 2004

Ronald Dworkin's work has challenged lawyers everywhere - and whether at the Bar, on the Bench, or in Chairs - to reconsider their views about the nature of law and legal reasoning. His forceful promotion, as much by example as by explanation, of the link between legal theory and practice has served to underline the importance of doing so. His willingness to strike out in new directions has trailed controversy in its wake, but it has also re-invigorated debates in all fields of law.

Little wonder then that Dworkin's influence should stretch to South Africa. There is more to this, however, than his general prominence in contemporary jurisprudence. For, as South African scholars came to realise, Dworkin's understanding of law and judicial reasoning is of special significance to lawyers operating in a system marked by pervasive and systemic injustice.

Each issue of Acta Juridica bears the following inscription on the title page: 'Published under the auspices of the Faculty of Law, University of Cape Town'. There is no doubt that it is a quintessential part of the faculty on the slopes of Devil's Peak, and that it has been such since the time that the Law School had been housed behind the Lions' Gate off Government Avenue in central Cape Town. Its pages tell the story of the intellectual debates that have occupied the Faculty over the last fifty years. However, it has never had a parochial outlook. From the very beginning the editors drew in an array of international authors - and so it has remained. Over the years Acta has provided a window through which the world could take note of major issues in South African law, while also serving as a forum in which South African and international scholars could engage in debate.

South Africa has become, I think, the outstanding example of a successful interplay between constitutional law, law in general, really, and political morality. This is a theme that I have tried to emphasise in my writing and lectures for too many years now, and I find again and again that I refer to South Africa as an example of a place where constitutionalism, you might think against the odds, was just assumed to be the nerve of the new majoritarian order. It is a country that not just continues to draw upon the best traditions of an understanding of law as part of political morality, but, through the work of your Constitutional Court and other courts, increasingly provides material being studied very carefully around the rest of the world as to how that interplay should be conducted with restraint, with a sense of the past but also with a sense of the centrality of justice to thinking about law.

What is an 'analysis' of the nature of law? Let us suppose that it means that we have to find some convention amongst us that determines what amounts to correct or incorrect understandings of law. It would follow that we should regard something as law just because people - perhaps a significant group of people - accepted it as law, for this is what determination by convention means.

Note that this method would not help us in analysing morality. Murder is not murder, or wrong, simply because 100% of people believe it is. So a conventional account of murder is not possible: in fact, the very last reason we would offer to say murder was wrong is that everyone thought it was wrong. In justifying our condemnation of murder we would most likely give as reasons, 'a right to live', 'the wrongness of causing pain' or 'the sanctity of life' and so on, but not: '100% of people think it wrong'. If we did cite the beliefs of others as the major reason for our belief we would merely be parroting the views of others - for example, like saying 'murder is wrong because my father said so'.
People share moral views, true, but we do not think that they hold genuine moral convictions unless they have formed their view independently 'for themselves'. Given that we share so many moral convictions, it is not surprising that linguistic conventions have arisen expressing our shared views - about murder, for example. And so, by convention, 'murder' is the word we refer to correctly when contemplating an intentional killing motivated by personal material gain. (In other countries, there are different linguistic conventions to express exactly the same idea.) But it does not follow that the linguistic convention determines correct understanding, or that it determines the correct set of reasons that justify thinking this case to be murder. We can only say that there is a 'common understanding' that murder is wrong, and this means that each person independently holds a conviction that murder is wrong.

The hardest thing to do in writing about the work of Ronald Dworkin is to avoid making reference to one or more of his fabulous titles in one's own. We all know the temptation - how it lures us! And so many people have succumbed, and with such a conspicuous lack of success, it is heartening. In thinking it through anew one begins benignly, toying with a variety of combinations: 'Empire's Law', 'A Matter of Law', 'Law's Principle', 'Taking Dworkin Seriously', 'Freedom's Dominion' only to discover that they've already been done. So one becomes a little more adventurous: 'Law's Matter', 'Life's Principles', 'Sovereign's Freedom', 'Empire's Virtue', until eventually one finds oneself obsessing with a theme: 'A Matter of Seriousness', 'Serious Law', 'Serious Dominion', 'Taking Matter Seriously', 'Taking Life Seriously', 'Seriously Taking Life', 'You Cannot be Serious', till the ultimate in sublime simplicity and profound, performative, cool suggests itself: 'Seriously!'

I never met the late Etienne Mureinik, though I have heard South Africans refer to him as the country's most brilliant public lawyer. What I have read of his - a critique of Ronald Dworkin's Law's Empire - was both fascinating and devastating. Fascinating because he paid Dworkin the great compliment of subjecting his work to a critique that sees it in its best light. Devastating because he levels it a blow from which it cannot recover, despite, I should stress here, Mureinik's own best efforts. It is captured in this thought: that according to the logic of law's 'integrity', an iniquity, once it has made a substantial enough incursion into a legal system, continues to proliferate under its own momentum. Let us call this the 'iniquity thesis'. It took hold in South Africa under apartheid. And it is, I will argue, what Dworkin's theory of integrity as prescription for legal practice can present no credible defence to.

What do respect, responsibility and rights have in common? Many commentators criticise the South African Constitution and our emerging constitutional jurisprudence on the basis that they are all about rights, and not responsibility. This criticism is misplaced, in my view. For me, respect, responsibility and rights are the building blocks of the Constitution.

In the course of my remarks, I will put forward a proposition concerning constitutional principle, and then substantiate it and make a few further comments about it. I should start, however, by noting that on putting up a proposition of this sort I am painfully conscious of the dangers of judicial self-delusion. It was the early German legal thinker Otto Kirchheimer who analysed the dangers of judging in a divided society (he was analysing the judiciary in the Weimar Republic).

During the 1980s Ronald Dworkin's theory of adjudication became a powerful tool for critique of the performance of the South African judiciary, especially insofar as the interpretation of racist and security legislation was concerned. In particular, Etienne Mureinik used Dworkin's theory of integrity to argue that the foundational values upon which the legal system of South Africa had initially been predicated could be used to ameliorate the ravages of a racist and authoritarian legal system in which freedom and liberty lay at the whim of a policeman.

The essence of Mureinik's utilization of Dworkin's theory was the contention that the core of the South African legal system was still founded on certain fundamental values that promoted individual liberty and freedom. As he wrote, 'The courts have been quick in recent times to call rights fundamental, but slow to deliver on the promise of the label. They need urgently to be called to account, and it is one of integrity's most important challenges to do the calling.'

This essay concerns the following question: can s 39(2) of the South African Constitution be justified by Ronald Dworkin's notion of 'political integrity'?

To understand this question one must know what s 39(2) of the South African Constitution says and what Dworkin's notion of political integrity entails. Section 39(2) holds that 'when developing the common law ... every court ... must promote the spirit, purport and objects of the Bill of Rights'. Dworkin's notion of political integrity, most fully developed in his Law's Empire, can be summarised in four points. First, political integrity is a property that a community's legal rules possess to a smaller or larger degree. Legal rules must here be understood as legal rules still in force: thus precedents that have not been overruled and statutes that have not been repealed. Secondly, a community's legal rules possess political integrity in so far as they are 'consistent in principle'. The more consistent in principle the rules are, the more political integrity they possess, and the converse. Thirdly, a community's rules are consistent in principle in so far as it is possible to justify them by principles that form a consistent set. As Dworkin puts it: a community lacks integrity if 'it must endorse principles to justify part of what it has done that it must reject to justify the rest'. Fourthly, according to Dworkin, political integrity (in the sense explained) is a political virtue besides justice and fairness. In other words, it matters that a community's legal rules are just and fair (fair in the sense that they were produced by procedures that distribute power in the right way). But that is not all that matters. It also matters that the rules possess political integrity, that the rules are consistent in principle.

There is a difference between rights and lesser interests - a difference which Ronald Dworkin captures in his well-known description of rights as 'trumps'. 'Individual rights', Dworkin says, are 'political trumps held by individuals. Individuals have rights when, for some reason, a collective goal is not a sufficient justification for denying them what they wish, as individuals, to have or to do, or not a sufficient justification for imposing some loss or injury upon them'. Collective goals can, by contrast, justify the invasion of lesser interests. Dworkin gives the example of a law which forbids motorists to drive up Lexington Avenue. '[T]hough the New York government needs a justification for forbidding motorists to drive up Lexington Avenue, it is sufficient justification if the proper officials believe, on sound evidence, that the gain to the many will outweigh the inconvenience to the few'. But rights are a card of a stronger suit than the general good and the fact that exercise of a right is not in the public interest is not enough to justify interference with that right.

Many modern constitutional charters of fundamental rights authorize the limitation of the rights they entrench. The very abstract terms in which constitutional rights are usually formulated make collisions among them, and between different individuals' entitlements under a single right, inevitable. Naturally, this requires determination of the limits of rival rights and of the entitlements they grant to individuals. It also seems to render legislative and administrative determination of these rights unobjectionable, provided that this is, as these constitutions require, policed by independent courts - there are typically many different ways in which clashing rights and interests might be reconciled in particular circumstances, and it seems appropriate that in democracies the choice of means should be left to an elected legislature and the government over which it exercises ultimate control, while the courts ensure that the choices so made remain within the broad framework of the charter of rights.